Commentary

In response to the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, several leftist groups have been hard at work in Maine seeking support for a constitutional amendment that would severely restrict the rights of people who choose to work through incorporated entities.

In Citizens United, the Court overturned on First Amendment free speech grounds the federal ban on “independent political expenditures” by for-profit and non-profit corporations and unions. Such expenditures are independent of any party or candidate. The court, however, left intact the existing ban on direct corporate contributions to candidates and political parties. While leftist groups vociferously denounced both the court and the ruling, Citizens United did nothing more than reestablish the law as it existed for more than a century.

Apart from propaganda, the left’s response to the decision has taken the form of two proposed constitutional amendments that go far beyond reversing Citizens United and would abridge – wholesale – the rights and liberties of the people if enacted. The groups mounting the respective amendment efforts are apparently well-funded and professionally run, with operatives working in various states, including Maine.

The first such amendment is the so-called “People’s Rights Amendment”. Sponsored by Rep. James McGovern of Massachusetts, the PRA consists of three sections (with emphasis added):

SECTION 1.

We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.

SECTION 2.

The wordspeople, person, or citizen as used in this Constitution do not include corporations, limited liability companies or other corporate entities established by the laws of any State, the United States, or any foreign state, and such corporate entities are subject to such regulation as the people, through their elected State and Federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.

SECTION 3.

Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.

The weaknesses of this language should be obvious to all: the PRA goes way beyond Citizens United and First Amendment free speech protections and instead eliminates all constitutional rights for incorporated entities.

So what rights would these be? Well, let’s think of just a few. How about the Fourth Amendment protection from unlawful search and seizure? Or what about due process and property rights under the Fifth? In light of the clear language in section 1, the section 3 “savings” provision is a flat-out lie.

Under the PRA, government could conduct warrantless searches of any property not owned by a “natural person” and seize such property without compensation in violation of the Fifth Amendment. Government could even deny First Amendment rights, including free speech and religious liberties, to any incorporated entity, including unions, churches, news organizations, and even political parties themselves.

The PRA makes no distinction between for-profit and non-profit entities. This means that government – federal, state and local – would have the power to silence and seize the property of non-profit groups as varied as the NRA, the Sierra Club, the Roman Catholic Church or Planned Parenthood. All are incorporated and all own property and speak out on public issues.

The second proposed amendment is the “We the People Amendment”, which is even more candid than the PRA about cancelling peoples’ liberties – all in the name of the “people”, of course:

Section 1. [Artificial Entities Such as Corporations Do Not Have Constitutional Rights]

The rights protected by the Constitution of the United States are the rights of natural persons only.

Artificial entities established by the laws of any State, the United States, or any foreign state shall have no rights under this Constitution and are subject to regulation by the People, through Federal, State, or local law.

The privileges of artificial entities shall be determined by the People, through Federal, State, or local law, and shall not be construed to be inherent or inalienable.

Section 2. [Money is Not Free Speech]

Federal, State, and local government shall regulate, limit, or prohibit contributions and expenditures, including a candidate’s own contributions and expenditures, to ensure that all citizens, regardless of their economic status, have access to the political process, and that no person gains, as a result of their money, substantially more access or ability to influence in any way the election of any candidate for public office or any ballot measure.

Federal, State, and local government shall require that any permissible contributions and expenditures be publicly disclosed.

The judiciary shall not construe the spending of money to influence elections to be speech under the First Amendment.

These amendments are bone-chilling for any liberty-loving person. They go way, way beyond overruling Citizens United, which only dealt with limited political contributions by corporate entities. Instead, the proponents – either through ignorance or outright malice – have seized Citizens United as a pretext to assault all the Constitution’s protections.

The simple ignorance displayed is appalling enough: in the modern world, people choose to order their affairs through corporate entities large and small. Overwhelmingly, “corporations” are small groups of people – or one person – organizing for some for-profit or non-profit purpose. And the First Amendment rightly protects a variety of expressive political acts, like burning a flag – or contributing money.

Worse, several Maine cities have already adopted resolutions to “overrule Citizens United”. These communities include Bangor, Waterville and Portland. The Auburn city council had the uncommon good sense to decline a similar invitation to endorse arbitrary and tyrannical government. Let’s hope others do the same. These amendments are, simply, a bait-and-switch scam designed to liberate us from our liberties.

David P. Crocker is Director of the Center for Constitutional Government. He’s practiced law for twenty-one years both as a US Attorney and British Solicitor